Bollenbacher v. The First National Bank of Bloomington
| Decision Date | 10 November 1893 |
| Docket Number | 1,136 |
| Citation | 35 N.E. 403,8 Ind.App. 12 |
| Parties | BOLLENBACHER ET AL. v. THE FIRST NATIONAL BANK OF BLOOMINGTON ET AL |
| Court | Indiana Appellate Court |
From the Monroe Circuit Court.
Judgment affirmed.
J. R East, R. A. Fulk and E. Corr, for appellants.
J. H Louden, W. P. Rogers and P. K. Buskirk, for appellees.
The special finding of facts is substantially as follows:
1st. That on the 17th of September, 1885, there was a firm in Bloomington, known by the name of Bollenbacher & Sons, and consisting of George Bollenbacher, Sr., George W., Martin C., and William P. Bollenbacher; that on said 17th of September, 1885, said George Bollenbacher, Sr., died testate; that, by the terms of his will his sons, other than George W., were to have all of said decedent's interest in the said firm, consisting of real and personal property.
2d. That the firm of Bollenbacher & Sons had been in existence since 1881, engaged in the manufacture of spokes.
3d. That at the time of the death of George Bollenbacher, Sr., said firm was indebted to the First National Bank of Bloomington in the sum of $ 17,500; that a great part of said indebtedness still continued until the application of the sum of money described in plaintiff's complaint, and that said firm is still indebted to said bank.
4th. That upon the death of George Bollenbacher, Sr., in September, 1885, the firm of "Bollenbacher's Sons" was organized; that said firm was composed of George W., William P., Martin C., Samuel, and Jacob I. Bollenbacher, all sons of George Bollenbacher, Sr., and all members of the old firm, except Samuel and Jacob I.
5th. That all the interest that William P., Martin C., Samuel, and Jacob Bollenbacher had in the firm of Bollenbacher's Sons was the interest owned by George Bollenbacher, Sr., at the time of his death, in the firm of Bollenbacher & Sons, except what interest William P. and Martin C. had in the firm of Bollenbacher & Sons.
6th. That all the capital, property and stock and choses in action that the firm of Bollenbacher's Sons had at the time of its organization in September, 1885, was the capital, property and stock and choses in action of the firm of Bollenbacher & Sons, as it existed at the time of the death of George Bollenbacher, Sr.; that the same was worth the sum of $ 15,000.
7th. That the firm of Bollenbacher's Sons continued the business of manufacturing spokes, from September, 1885, until 1888, since which time it has done no business with any one.
8th. That in December, 1888, said firm of Bollenbacher's Sons had deposited to its credit in the First National Bank of Bloomington the sum of $ 1,573.09, and that said sum has never been paid over to said firm by said bank.
9th. That on the 4th day of April, 1887, the factory that belonged to the firm of Bollenbacher & Sons was burned down and destroyed; that there was a policy of insurance on said building and contents in the name of Bollenbacher's Sons; that said policy was put on said building and contents by the said firm of Bollenbacher's Sons, and they paid the premium on said policy.
10th. That said policy amounted to the sum of $ 4,000, and that it was collected by the said firm of Bollenbacher's Sons and deposited in the First National Bank of Bloomington to their credit, and that in September, 1888, $ 300 of this same insurance money still remained in said bank.
11th. That on the 28th of September, 1885, there was deposited in the First National Bank of Bloomington, to the credit of the firm of Bollenbacher & Sons, the sum of $ 1,493.28, and that this sum of money was on that day transferred from the account of Bollenbacher & Sons to the credit of Bollenbacher's Sons, and that said money was so transferred at the instance and request of the firm of Bollenbacher's Sons, and that from that time continuously the moneys of the firms of Bollenbacher & Sons and Bollenbacher's Sons were commingled.
12th. That the outstanding indebtedness of the firm of Bollenbacher & Sons was never all paid; that at the time the firm of Bollenbacher's Sons quit business in 1888, the firm of Bollenbacher & Sons still owed the First National Bank of Bloomington $ 10,000, with interest thereon.
13th. That a mortgage for $ 8,000 on the spoke factory and machinery and stock of the firm of Bollenbacher & Sons, to the said bank, was paid off by the firm of Bollenbacher's Sons, and that a large portion of the insurance money was used by said firm to pay said mortgage indebtedness.
14th. That the affairs of the firm of Bollenbacher & Sons have never been settled by any one, but that one Charles McPheeters has been duly appointed receiver of and for said firm.
15th. That before the filing of this suit, one John R. East, as attorney of the plaintiffs, during banking hours, and at the place of banking of the First National Bank of Bloomington, made a demand and presented a check duly signed "Bollenbacher's Sons," for the sum of $ 1,573.09, to the cashier of said bank, and demanded payment of the same, but that payment of said check was refused.
16th. That on the 15th day of November, 1888, Charles McPheeters, receiver of the firm of Bollenbacher & Sons, checked out of the said First National Bank of Bloomington the sum of $ 1,573.09 that was credited in said bank to the firm of Bollenbacher's Sons, and applied the same on the indebtedness of Bollenbacher & Sons to said bank.
As a conclusion of law the court found for appellees.
The only error discussed is that the court erred in its conclusion of law on the special finding of facts.
Counsel for appellants contend that "the firm of Bollenbacher's Sons had an insurable interest in the property formerly owned by Bollenbacher & Sons, which was insured by Bollenbacher's Sons," and, therefore, "the money derived on the policy belonged to Bollenbacher's Sons,--amounting to $ 4,000,--and the $ 1,575 in bank ought to have been paid to them."
This contention is based on the general proposition that a partner has an insurable interest to the amount of the value of the entire partnership property. It may be conceded that, ordinarily, an insurance by one partner in his own name, on partnership property, does not inure to the benefit of the partnership, but the question is whether the rule on which appellants rely is applicable to the facts in this case.
It should be borne...
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